Ovitsky v. Washington County Victim Assistance et al
Filing
104
ORDER: BSD's motions to strike the SAC and dismiss the FAC 78 and 93 are granted. As a result, plaintiff's motion for default judgment against Jerry Brown 98 , Jerry Brown's motion to quash ineffective service 99 , and J ohn Kitzhaber's motion for joinder in BSD's motion to dismiss 103 are denied as moot. Any motion to amend the FAC is due within 20 days of the date of this opinion and must be filed in accordance with this Court's orders, as well as the federal and local rules of civil procedure; failure to do so will result in automatic denial of that motion and dismissal of this lawsuit with prejudice. See formal order. Copy of this order sent to Pro Se Plaintiff. Signed on 2/3/2014 by Chief Judge Ann L. Aiken. (rh)
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF OREGON
ABBY JO OVITSKY,
Case No. 3:12-cv-02250-AA
OPINION AND ORDER
Plaintiff,
v.
STATE OF OREGON, WASHINGTON
COUNTY, WASHINGTON COUNTY
SHERIFF'S DEPARTMENT,
BEAVERTON SCHOOL DISTRICT,
and NEAL EVAN CUTLER,
Defendants.
Abby Jo Ovitsky
6900 S.W. 195th Avenue #133
Beaverton, Oregon 97007
Pro se plaintiff
Naomi Levelle Haslitt
Miller Nash LLP
111 S.W. Fifth Avenue, Suite 3400
Portland, Oregon 97204
Attorney for defendant Beaverton School District
Ellen F. Rosenblum
Attorney General
Michael R. Washington
Senior Assistant Attorney General
Department of Justice
1162 Court Street N.E.
Salem, Oregon 97301
Attorneys for defendant John Kitzhaber
Page 1 - OPINION AND ORDER
AIKEN, Chief Judge:
Defendant Beaverton School District ("BSD") moves to dismiss
prose plaintiff Abby Jo Ovitsky's claims pursuant to Fed. R. Civ.
P.
12 (b) ( 6) .
For the reasons set forth below,
BSD' s motion is
granted.
BACKGROUND
Plaintiff suffers from an auditory processing disorder and
uses Relay, a service that allows hearing impaired individuals to
communicate with others.
This service works through an operator,
who reads what the hearing impaired individual types aloud and then
types to the hearing impaired individual what another person speaks
in response.
Over two years ago, on December 13, 2012, plaintiff brought a
lawsuit against Washington County Victim Assistance, the Washington
County
Sheriffs
Department
("WCSD"),
Washington
County
Judge
Michele Rini, the Washington County Circuit Court, and the Juvenile
Justice
Department.
On
January
7,
2013,
the
Court
plaintiff's motion to proceed in forma pauperis ("IFP").
granted
On April
20, 2013, defendants Pat Garrett, Judge Rini, Alan Rappleyea, Lynn
Schroeder,
and WCSD were dismissed from this lawsuit;
the Court
also granted plaintiff leave to amend her complaint.
On May 14, 2013, plaintiff filed her first amended complaint
("FAC") against the State of Oregon
("County~),
WCSD, Neal Cutler Evans, and BSD, alleging disability
discrimination
Disabilities
("State"), Washington County
under
Act
42
("ADA"),
U.S.C.
the
§
1983,
the
Rehabilitation
Americans
Act,
and
with
Oregon
statutory law, at which time she requested appointment of pro bono
counsel.
The FAC is premised, in part, on her son's 2012 juvenile
Page 2 - OPINION AND ORDER
hearing, during which Judge Rini allegedly refused to accommodate
a slowdown of the Relay operation to 60 words per minute;
result,
as a
the parties were speaking too quickly for plaintiff to
listen and understand. 1
On May 28,
2013,
the County filed a motion to dismiss on
behalf of itself and WCSD.
motion to dismiss.
On June 27,
On August 20,
2013,
2013,
the State filed a
this Court granted the
County's and the State's motions without prejudice, and dismissed
WCSD as a defendant from this action with prejudice.
See Ovitsky
v. Oregon ("Ovitsky I"), 2013 WL 4505832 (D.Or. Aug. 20, 2013).
August 22,
2013,
On
plaintiff appealed that decision to the Ninth
Circuit Court of Appeals.
On August 30, 2013, BSD moved to dismiss plaintiff's FAC.
On
September 9, 2013, plaintiff filed a single motion for a "Rule 65
Emergency
requesting
Preliminary
relief
Injunction"
based
on
and
events
"Rule
that
11
Sanctions,"
transpired
between
plaintiff, her son, and BSD from June 2013, through September 2013.
In relevant part, plaintiff sought to prevent a meeting that was
scheduled for later that day to execute a
§
plaintiff's
accommodation
son with
a
FM System as
an
504 plan and provide
hearing impairment, which was diagnosed in June 2013.
the September 9,
for
his
Ultimately,
2013 meeting took place as scheduled,
however,
plaintiff elected not to attend.
1
While difficult to decipher, plaintiff's FAC is also based
on several other discrete factual scenarios that transpired in
2012.
See generally FAC.
These circumstances include, but are
not limited to, a 911 call plaintiff placed with the County and
job applications plaintiff filed with the State; it is unclear
whether and/or how these events relate to her son's juvenile
proceedings.
Page 3 - OPINION AND ORDER
On September 16, this Court denied plaintiff's Fed. R. Civ. P.
11 and Fed. R. Civ. P.
failed
to
65 motion,
confer pursuant
to
finding in part that plaintiff
LR 7-1,
and that
her motion was
premised on the rights of a third-party and events that transpired
after the FAC was filed.
2013 WL 5253162
(D.Or.
See Ovitsky v. Oregon
Sept.
16,
2013).
("Ovitsky II"),
On October 16,
2013,
plaintiff filed an opposition to BSD's motion to dismiss,
based
entirely
on
a
new
factual
scenario
namely,
the
allegedly
discriminatory practices on display during the September 9,
meeting between BSD and her son.
2013
Plaintiff then requested leave to
amend the FAC in order to add her son as a plaintiff and the recent
factual
developments;
counsel
and
class
she
also
sought
certification.
appointment
That
same
of
day,
pro
bono
plaintiff
separately moved to file yet another amended complaint, requesting
identical relief.
On October 18, 2013, the Court denied plaintiff's motion to
amend, with leave to refile in accordance with LR 7-1 and LR 15.
On October 22, 2013, the Ninth Circuit dismissed plaintiff's appeal
for lack of
jurisdi~tion.
On November 18, 2013, without leave from
the Court or consent from the opposing party, plaintiff filed a
second amended complaint ("SAC") against BSD, Jerry Brown, and John
Kitzhaber, alleging claims under 42 U.S.C.
ADA,
42 U.S.C.
§
and Or. Rev. Stat.
§
1983; Title II of the
12132; the Rehabilitation Act,
§
659A.142. 2
2
29 U.S.C.
§
794;
The SAC abandoned several theories
Although she misidentifies the statute in both the FAC and
the SAC, plaintiff's pleadings and opposition indicate that her
Oregon disability discrimination claim is alleged under Or. Rev.
Stat. § 659A.142, the state statute that parallels the ADA.
See
FAC pg. 22; SAC pg. 24-25; see also Quesnoy v. Oregon, 2011 WL
5439103, *1 (D.Or. Nov. 4, 2011).
Page 4 - OPINION AND ORDER
of liability asserted in the FAC and instead focused primarily on
events surrounding the September 9, 2013 meeting.
On December 5,
2013, BSD filed a supplement to its motion to dismiss, addressing
the new allegations raised in the SAC; despite express permission
from the Court, plaintiff did not file a supplemental response to
BSD's updated motion.
STANDARDS OF REVIEW
Where the plaintiff "fails to state a claim upon which relief
can be granted," the court must dismiss the action.
P. 12(b) (6).
To survive a motion to dismiss,
Fed. R. Civ.
the complaint must
allege "enough facts to state a claim to relief that is plausible
on its face."
( 2 007) .
Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 570
For purposes of a motion to dismiss,
the complaint is
liberally construed in favor of the plaintiff and its allegations
are taken as true.
1983).
Rosen v. Walters, 719 F.2d 1422, 1424 (9th Cir.
Bare assertions, however, that amount to nothing more than
a "formulaic recitation of the elements" of a claim "are conclusory
and not entitled to be assumed true."
662,
681
(2009).
Ashcroft v. Iqbal, 556 U.S.
Rather, to state a plausible claim for relief,
the complaint "must contain sufficient allegations of underlying
facts" to support its legal conclusions.
Starr v. Baca, 652 F.3d
1202, 1216 (9th Cir. 2011), cert. denied, 132 S.Ct. 2101 (2012).
DISCUSSION
BSD argues that plaintiff's claims should be dismissed on a
number of grounds.
stricken,
Initially, BSD contends that the SAC should be
leaving the
FAC as the dispositive pleading,
because
plaintiff failed to obtain leave of the Court or BSD's consent to
file the SAC.
BSD further notes that, in filing the SAC, plaintiff
Page 5 - OPINION AND ORDER
failed to comply with LR 7-1 and LR 15.
In the alternative,
BSD
asserts that both the FAC and SAC fail to state a claim under 42
U.S.C.
§
1983, Title II of the ADA, the Rehabilitation Act, or Or.
Rev. Stat.
I.
§
659A.142.
Dispositive Pleading
Where, as here, more than 21 days have elapsed since service
of the complaint,
"a party may amend its pleading only with the
opposing party's written consent or the court's leave."
Civ. P. 15(a) (2).
Fed. R.
Pursuant to this subsection, "[t]he court should
freely give leave when justice so requires."
Id.; see also Forsyth
v. Humana, Inc., 114 F.3d 1467, 1482 (9th Cir. 1997)
(outlining the
factors to be considered in determining whether a motion to amend
should be granted) .
Plaintiff violated Fed. R. Civ. P. 15(a) (2) when she neglected
to obtain leave from the Court or BSD's consent to add new claims
and defendants.
Further, in direct contravention of this Court's
repeated orders, plaintiff made no attempt to conform the SAC with
the requirements of LR 7-1 or LR 15.
565,
567
See King v. Atiyeh, 814 F.2d
(9th Cir. 1987), overruled on other grounds by Lacey v.
Maricopa Cnty., 693 F.2d 896 (9th Cir. 2012)
must
follow
litigants").
the
same
rules
of
procedure
("[p]ro se litigants
that
govern
other
Notably, plaintiff "did not confer with the School
District's counsel before filing the second amended complaint" and
her SAC "is not accompanied by a motion explaining the changes to
the complaint."
1(a)
BSD's Supplement to Mot. Dismiss 2; see also LR 7-
("[t]he Court may deny any motion that fails" to specify, with
the first paragraph, that "[t]he parties made a good faith effort
. to resolve the dispute and have been unable to do so; or the
Page 6 - OPINION AND ORDER
opposing party willfully refused to confer"); LR 15(c)
("any party
moving for leave to file an amended or supplemental pleading must
describe the proposed changes" in the accompanying motion) .
Despite
the
aforementioned
consider the SAC,
in the
deficiencies,
interest of
of
Higher
Educ.,
555
F.3d
Court
judicial economy,
proposed amendments were not also futile.
Sys.
the
1051,
would
if the
See Ahlmeyer v.
1055
(9th
Cir.
Nev.
2009)
("futility of amendment alone can justify the denial of a motion
[to amend]").
Beyond
Plaintiff's SAC, however, fails to state a claim.
being
vague
and/or
conclusory,
the
SAC
does
not
articulate the deprivation of a federal constitutional or statutory
right sufficient to sustain a 42 U.S.C. § 1983 claim. 3
concerning
659A.142
her
ADA,
claims,
Rehabilitation Act,
plaintiff
does
not
and
Or.
identify
a
Moreover,
Rev.
Stat.
§
BSD
service,
program, or activity that she was qualified for and denied access
to.
See Ovitsky I, 2013 WL 4505832 at *2-3 (outlining the elements
of a Title II ADA and Rehabilitation Act claims)
3
(citing Lovell v.
The SAC includes an "Access to Administrative Due Process
Hearings" section, in which plaintiff cites to Richmond
Newspapers, Inc. v. Virginia, 448 U.S. 555 (1980), in support of
the proposition that "[t]he Fourteenth Amendment protects the
rights of civil litigants, criminal defendants, and members of
the public to have access to courts." SAC pg. 26.
Because 42
U.S.C. § 1983 cannot be utilized to vindicate rights created by
Title II of the ADA or § 504 of the Rehabilitation Act, this is
the only allegation that identifies an actionable federal
statutory or constitutional right. Vinson v. Thomas, 288 F.3d
1145, 1156 (9th Cir. 2002), cert. denied, 537 U.S. 1104 (2003).
Plaintiff, however, does not refer to any court or administrative
proceeding that she either requested or had a legal right to
participate in and was denied access to, including the September
9, 2013 meeting that she chose not to attend.
The Court notes,
while not dispositive, due process hearings under the
Rehabilitation Act are generally not available to parents in this
context, given that plaintiff does not challenge BSD's assessment
of her son's impairment or the sufficiency of the§ 504 plan.
Page 7 - OPINION AND ORDER
Chandler,
303 F.3d 1039,
1052
Davis, 295 F.3d 890, 895
921
(2003));
see
F.Supp.2d 1286,
associational
also
(9th Cir. 2002),
Glass
1289-92
(9th Cir.
v.
(D.Or.
discrimination
2002);
cert. denied,
Hillsboro
2001)
claims
and Thompson v.
Sch.
538 U.S.
Dist.
1J,
142
(parents do not have valid
under
the
ADA
or
the
Rehabilitations Act if those claims are focused on supporting their
minor child's educational rights).
These shortcomings are attributable, in part, to plaintiff's
claims
that
are based primarily upon BSD' s
alleged failure
to
expediently provide reasonable accommodations for her son's hearing
impairment and accessible communication to him at the September 9,
2013
meeting.
See,
e.g.,
SAC
pg.
16-18.
In
other
words,
plaintiff's SAC is based almost entirely on the rights of a thirdparty.
As this Court previously explained,
however,
plaintiff
lacks standing to pursue claims that are not premised on her own
legal rights or interests, absent express statutory authorization
to the contrary. 4
Ovitsky II,
4
2013 WL 5253162 at *2
(citations
For instance, the Individuals with Disabilities Education
Act ("IDEA") affords parents an independent and enforceable right
to the substantive adequacy of their child's education, which may
be litigated pro se in federal court.
See Winkelman ex rel.
Winkelman v. Parma City Sch. Dist., 550 U.S. 516, 533 (2007).
Plaintiff, however, has not alleged facts illustrating her son
was eligible under the IDEA.
See generally SAC, FAC; see also
D.R. ex rel. Courtney R. v. Antelope Valley Union High Sch.
Dist., 746 F.Supp.2d 1132, 1141-42 (C.D.Cal. 2010) ("when related
services and accommodations allow a student to make progress in
the regular education program .
. there is no need for special
education and therefore no eligibility under the IDEA")
(citations and internal quotations omitted).
Further, because plaintiff's son is legally an adult, cases
suggesting that pro se parents have standing to pursue claims on
behalf of their minor child under the Rehabilitation Act or Title
II of the ADA are distinguishable.
See Blanchard v. Morton Sch.
Dist., 509 F.3d 934, 938 (9th Cir. 2007), cert. denied, 552 U.S.
1231 (2008) (under Winkelman, a pro se parent was "a proper
plaintiff [to bring Rehabilitation Act and ADA claims], at least
Page 8 - OPINION AND ORDER
omitted).
Plaintiff's
therefore,
if
he
seeks
plaintiff's complaint,
See 28 U.S.C.
States,
818
§
son
is
over
redress
for
age
the
of
eighteen
injuries
and,
alleged
in
he may proceed pro se on his own behalf.
1654; see also C.E.
F.2d
the
696,
697
(9th
Pope Equity Trust v.
Cir.
1987)
United
("[a]lthough
a
non-attorney may appear in propria persona in his own behalf
[h] e has no authority to appear as an attorney for others than
himself")
(citations omitted).
The Court acknowledges that plaintiff lists her son as a party
in the SAC.
Yet the SAC was clearly authored solely by plaintiff
and bears only her signature.
See SAC pg.
41.
Thus,
the fact
remains that "plaintiff's son has not filed any motion or other
pleading indicating an interest to participate in this lawsuit" and
there is otherwise no indication that he is unable to act as his
Ovitsky II,
own advocate.
2013 WL 5253162 at *2.
Under these
circumstances, plaintiff is acting as an improper representative
for her son.
See Simon v. Hartford Life, Inc., 546 F.3d 661, 664
(9th Cir. 2008).
Accordingly, plaintiff's SAC claims against BSD
insofar as she is asserting and enforcing the rights of her
[minor] son and incurring expenses for his benefit"); but see
J.R. ex rel. W.R. v. Sylvan Union Sch. Dist., 2008 WL 682595, *1
(E.D.Cal. Mar. 10), adopted by 2008 WL 2345103 (E.D.Cal. June 5,
2008) ("Winkelman does not accord these parents the right to
pursue non-IDEA claims on behalf of J.R. because the general rule
remains that a parent or guardian cannot bring an action on
behalf of a minor child without retaining a lawyer") (citations
and internal quotations omitted).
In addition, the central
tenant underlying plaintiff's complaint is that, due to her
auditory processing disorder, others should be required to
communicate with her in accordance with her preferences - i.e.
remotely and in writing.
See, e.g., SAC pg. 37 ("no talking, no
meetings, no phones.
Use relay or email for all
communications").
Yet, based on the record before the Court, it
is questionable whether plaintiff's son requests the same
accommodations or finds the same behavior objectionable.
See,
~' Pl.'s Mot. for Prelim. Inj. Exs., at 3, 8-9.
Page 9 - OPINION AND ORDER
fail both at the pleadings level and as a matter of law.
Regarding John Kitzhaber and Jerry Brown, plaintiff's addition
of these defendants is a misjoinder.
These claims do not arise out
of the same "transaction, occurrence, or series of transactions or
occurrences" as those asserted against BSD in either the FAC or the
SAC
and
no
common
defendants.
against
See
question
Fed R.
of
Civ.
law
P.
or
fact
20 (a) (2).
arises
Plaintiff's
Jerry Brown and John Ki tzhaber in the
alleged
failure
of
the
States
of
as
to
all
claims
SAC concern the
California
and
Oregon,
respectively, to implement "any 911 access policy for deaf who need
to use a form of language that is different from spoken English,"
whereas, as discussed above, plaintiff's claims against BSD relate
to her son's right to reasonable accommodations and her mistaken
belief that the September 9,
2013 meeting was an administrative
proceeding and/or due process hearing.
allowing
plaintiff
to
add
Jerry
SAC pg.
Brown
and
5.
Essentially,
John
Kitzhaber
defendants would result in the initiation of a new lawsuit.
Thomas v.
pg.
7
FV-1,
Inc., Case No.
(D.Or. Aug.
5,
2012)
as
See
6:11-cv-06058-AA, Opinion & Order
(denying plaintiff's motion to amend
where "the proposed amendments arise out of a discrete incident,
depend
on
a
different
legal
theory,
and
involve
a
different
party") .
In addition,
plaintiff's claims against John Kitzhaber and
Jerry Brown suffer from many of the same defects as those raised
against
BSD
namely,
they
cognizable legal theory.
dismiss
an
malicious"
IFP
are
vague,
See 28 U.S.C.
complaint
or "fails to
Page 10- OPINION AND ORDER
sua
state
sponte
a
§
conclusory,
and
1915(e) (2) (B)
if
it
"is
claim on which
lack
a
(court must
frivolous
or
relief may be
granted");
Cir.
see also Lopez v.
2000)
stricken,
(en
bane).
leaving the
For
Smith,
203 F.3d 1122,
these
FAC as
reasons,
1126-27
plaintiff's
the dispositive pleading
SAC
for
(9th
is
the
purposes of BSD's motion to dismiss.
II.
The BSD's Motion to Dismiss the FAC
Plaintiff's
allegations
78-paragraph
against
FAC
BSD:
(1)
contains
BSD
only
four
"unreasonably
factual
delayed
investigating" an incident of alleged assault of plaintiff by her
son in their home;
( 2)
BSD failed to provide "reasonable public
accommodation [to her son] in a timely manner" based on the periods
during which the BSD responded to requests for an AlphaSmart laptop
and an audiologist appointment;
(3) a Relay operator transcribed a
single occurrence of "laughter" during a phone conversation between
plaintiff and a BSD representative; and (4)
BSD does not have an
"ADA enforcement policy in relation to deaf using relay services."
FAC
40, 46-48.
~~
A.
42 U.S.C.
§
1983 Claim
To state a claim under 42 U.S.C.
1983 against a government
§
entity, the plaintiff must allege that:
(1) the conduct complained
of deprived her of an existing federal constitutional or statutory
right; (2) the conduct was committed by a person acting under color
of state law; and (3) a direct causal link between a governmental
policy,
custom,
or
practice
statutory violation.
and
the
alleged
constitutional
or
See West v. Atkins, 487 U.S. 42, 48 (1988);
Ovitsky I, 2013 WL 4505832 at *2-3 (citing Monell v. Dep't of Soc.
Serv.
of
City
of
N.Y.,
436
U.S.
658,
694
(1978)).
A single
constitutional deprivation is generally insufficient to establish
a government practice or custom.
Page 11- OPINION AND ORDER
Christie v. Iopa, 176 F.3d 1231,
1235
(9th Cir.
(9th
Cir.
1999)
1996)).
(citing Trevino v. Gates,
Accordingly,
the
circumstances
governing body may be liable under 42 U.S.C.
circumscribed."
99 F.3d 911,
§
in
918
which
a
1983 are "carefully
Fuller v. City of Oakland, 47 F.3d 1522, 1534 (9th
Cir. 1995).
Here, BSD's alleged lack of a written policy relating to Relay
calls
and failure
to investigate plaintiff's
assault
complaint
against her son do not address any constitutional or statutory
deprivations.
Likewise,
a
transcribed
occurrence
of
laughter
during a Relay conversation is inadequate for the purposes of
1983 liability.
§
Plaintiff's remaining allegations impermissibly
relate to BSD's failure to provide reasonable accommodations to her
son.
See Fagone v. Ellison, 2013 WL 314356, *4 (E.D.Cal. Jan. 25,
2013)
(dismissing plaintiff's
son's rights).
§
1983 claim based on alleged harm to
Further, as this Court observed previously, the FAC
does not contain any allegations concerning the existence of a
government policy, custom, or practice that caused a violation of
plaintiff's
rights.
5
See
Ovitsky
I,
2013
WL
4505832
at
*3.
Accordingly, BSD's motion is granted as to plaintiff's 42 U.S.C.
§
1983 claim.
5
Plaintiff attempts to remedy some of these defects via her
response to BSD's motion to dismiss.
See, e.g., Pl.'s Resp. to
BSD's Mot. Dismiss 29-30.
Yet "'new' allegations contained in
the [plaintiff's] opposition motion . . . are irrelevant for Rule
12(b) (6) purposes . . . a court may not look beyond the complaint
to a plaintiff's moving papers, such as a memorandum in
opposition to a defendant's motion to dismiss." Schneider v.
Cal. Deo't of Corr., 151 F.3d 1194, 1197 n. 1 (9th Cir. 1998)
(citation omitted).
Regardless, even construing plaintiff's
opposition as a supplement to the FAC, because it is nearly
identical to the SAC, dismissal remains appropriate.
Page 12- OPINION AND ORDER
B.
Rehabilitation Act, Title II ADA,
and Or. Rev. Stat.
§
659A.142 Claims
In order to establish a claim of disability discrimination
under Title II of the ADA,
Stat.
§
65 9A. 142,
the Rehabilitation Act,
a plaintiff must allege that:
individual with a disability";
participate
in or receive
( 1)
or Or.
Rev.
she "is an
(2) she "is otherwise qualified to
the benefit
services, programs, or activities";
(3)
of
some public entity's
she "was either excluded
from participation in or denied the benefits of the public entity's
services, programs, or activities, or was otherwise discriminated
against by the public entity"; and (4) "such exclusion, denial of
benefits,
or discrimination was by reason of
[her]
disability."
Thompson, 295 F.3d at 895; Lovell, 303 F.3d at 1052; see also Or.
Rev. Stat.
§
659A.142 (making it unlawful for the state government
or a place of public accommodation "to exclude an individual from
participation
in
or
deny
an
individual
the
benefits
of
the
services, programs or activities . . . or to make any distinction,
discrimination
or
restriction
because
the
individual
has
a
disability"); Quesnoy, 2011 WL 5439103 at *6 (analyzing disability
discrimination claims under Or. Rev. Stat.
§
659A.142 and the ADA
coterminously) .
Plaintiff's FAC states only that she is handicapped within the
meaning of these statutes.
She does not, and cannot, allege that
she is qualified for the benefits sought - i.e. an AlphaSmart and
audiologist evaluation - because she is not a student of BSD.
In
other words, the requested benefits, which were ultimately provided
to her son, arise solely from his right to a free public education.
Additionally, although plaintiff asserts that BSD does not have a
Page 13- OPINION AND ORDER
policy relating to the use of Relay services, she does not allege
that
these
events
caused
a
deprivation
of
her
rights;
to
the
contrary, the FAC indicates that plaintiff was in regular contact
with BSD, both by email and over Relay.
See FAC Exs. C & E; see
also Green v. Tri-Cnty. Metro. Transp. Dist. of Or., 909 F.Supp.2d
1211, 1221 (D.Or. 2012)
(school district cannot be liable under the
ADA for its training policies unless alleged deficiencies in those
policies actually cause a deprivation of rights).
Moreover, a delay in investigating student perpetrated in-home
violence or an isolated incident of laughter, for an unknown reason
by
an
unknown
insufficient
individual,
to
support
during
a
a
Relay
disability
conversation
discrimination
are
claim,
especially since it is unclear from the FAC whether the allegedly
wrongful conduct was attributable to BSD.
In sum, even under the
lesser standard governing pro se pleadings, "vague and conclusory
allegations such as these are insufficient to survive a motion to
dismiss."
Ovitsky I,
2013 WL 4505832 at *4
(citation omitted).
Therefore, the BSD's motion is granted.
III. Appointment of Counsel
Finally,
plaintiff's
counsel is denied.
request
for
appointment
of
pro
bono
Although courts have no authority to compel
counsel to represent indigent plaintiffs in civil cases, they "may
request
an
counsel."
counsel
attorney
28 U.S.C.
"is
to
§
represent
1915(e).
discretionary,
"exceptional circumstances."
not
any
person
unable
to
afford
Nevertheless, the appointment of
mandatory,"
and
reserved
for
United States v. $292,888.04 in U.S.
Currency, 54 F.3d 564, 569 (9th Cir. 1995)
(citations omitted).
In
determining whether a plaintiff has demonstrated the existence of
Page 14- OPINION AND ORDER
exceptional circumstances, the court evaluates the likelihood of
success on the merits and the plaintiff's ability to articulate
claims pro se in light of the case's legal complexity.
Id.
Plaintiff has not established that she is entitled to such
assistance in the case at bar,
silent
as
to
the
likelihood
as her pleadings and brief are
of
success
complexity of the legal issues involved.
Resp. to BSD's Mot. Dismiss.
reveals that,
on
the merits
or
the
See generally FAC; Pl.'s
An independent review of the record
for the reasons discussed above,
warrants appointment of counsel.
Thus,
neither element
plaintiff's request
is
denied.
CONCLUSION
BSD's motions to strike the SAC and dismiss the FAC (docs. 78,
93)
are GRANTED.
As
a
result,
judgment against Jerry Brown
quash ineffective service
plaintiff's motion for
(doc.
(doc.
98),
Jerry Brown's motion to
99), and John Kitzhaber's motion
for joinder in BSD's motion to dismiss
moot.
default
(doc.
103)
are DENIED as
Any motion to amend the FAC is due within 20 days of the
date of this opinion and must be filed in accordance with this
Court's orders, as well as the federal and local rules of civil
procedure; failure to do so will result in automatic denial of that
motion and dismissal of this lawsuit with prejudice.
IT IS SO ORDERED
Dated this
..,
3 e-t;f February 2014.
Ann Aiken
United States District Judge
Page 15- OPINION AND ORDER
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